Introduction
In June or July this year, the High Court ordered the public
broadcaster, Malawi Broadcasting Corporation, or MBC, to pay Mr Richard
Msowoya, Speaker of the National Assembly, damages for defamation,
embarrassment, distress and for what Mr Msowoya had spent in taking the matter
to court (costs) in a defamation case. The outcome generated a lot of
excitement; perhaps many felt vicariously served in chiding MBC. I personally did
not find it amusing at all, and this was the reason: for me, this was another
battle lost in the fight for a thriving media environment in the country. Yeah,
for me, this was another precedent set, a precedent for more self-censorship. For
me, it did not matter it was MBC, my fear was for the greater good of the media
in the country. For me, every time the media, any media, suffers at the hands
of defamation, I feel scared, scared because events like these send shivers
among informers, leakers, tipsters and whistleblowers. I am not saying Mr Richard
Msowoya, who is Speaker of the National Assembly and also Vice-President of the
strongest opposition party in the country—the Malawi Congress Party—was wrong.
But I feel like he should have used the occasion to teach MBC a lesson through
mediation or arbitration outside the mandatory mediation route of the High
Court. In other words, I propose that we should see defamation going the court
way less, and going the informal mediation or arbitration route more.
Why Cases of Defamation
are on the Increase in the country
If my memory serves me well, this year alone the media have
reported more than seven cases on defamation going the court route. One
troubling truth in it is that this thing seems to spare none; even churches are
falling prey to this as attests one chapel story from the CCAP Livingstonia
Synod, a church institution covering mostly the Northern Region of the country.
On August 31, this year (2017), www.nyasatimes.com carried a story bearing the headline “CCAP Livingstonia Synod haunted by
defamation case: Matter back in court”. The story says the issue of defamation
which came out soon after the Synod had conducted elections for the post of
General Secretary is refusing to die. Two clerical elephants, Reverend Levi
Nyondo and Reverend Timothy Nyasulu, had fought bitterly for this position
which was eventually won by the former after he was re-elected for the
position. At the end, in May, Reverend Timothy Nyasulu and his group (eight
other clerics) dragged the Church leadership to court, arguing Reverend Nyondo
should not have been re-elected, and for defamation against Reverend Nyondo,
for allegedly saying that Reverend Nyasulu’s group had been funded by the
country’s governing Democratic Progressive Party to palm-oil members not to
vote for Reverend Nyondo.
According to the article, “Initially, the two parties had
agreed to discontinue the court cases after the High Court in Mzuzu ruled that
the concerned parties settle their differences (in-house) at church level
through mediation.”
Not long ago, in July, the BBC ran a story “Madonna accepts
damages over ‘invasion of privacy’” (see www.bbc.com dated 27 July, 2017). In the story,
Madonna and her adopted twin daughters (Stella and Estere) are said to have
accepted damages in figures undisclosed from a news agent, Associated Newspapers,
following the online paper’s publication of an article proved libelous in
court. The article the news outlet published had revealed the names of the two
daughters, plus the fact that they were from an orphanage and that the adoption
would be subject to adoption application. Madonna considered this invasion of
privacy because it was going to jeopardise her privacy as well as that of the
twins, not to say the adoption process itself. Note that the newspaper had
published this in January before the adoption in February. This means it should
not have been an issue if it had published it after the adoption. Madonna had
promised to donate the money received to the recently opened children hospital—The
Mercy James Institute for Paediatric Surgery in Blantyre.
The media everywhere face this threat, and the reasons are as
diverse. For Malawi, I think the major reason for this growing threat is the
type of our politics where newspaper outlets are arbitrarily classified into
those independent, where ‘independent’ is often associated with some
anti-government stance, and public broadcaster, where the outlet plays the
mouth-piece of the Government in power. I am not saying this is the fact on the
ground, for I have watched many programmes especially on independent information
square outlets where balance has been exercised to a great deal despite our associating
them with the opposition.
The danger with this labelling is that when those pro-ruling
party outlets write or say something that borders on defamation, those in the
opposition consider it an occasion to settle scores. Similarly, when an
independent outlet (and I have said ‘independent’ is a synonym of ‘opposition’,
writes or say something that would pass the test for defamation, those in
Government find the route to court more convenient. In the end, we have a
setting where journalism, especially investigative journalism, takes a heavy
beating because political undercurrents are so strong they literally affect objectivity
and purity in the profession.
The second reason defamation cases are on the increase in
Malawi is that most reporters are joining the profession without having gone
through thorough educational and ethical channels for a person in this noble
profession. As a result we have reporters who love to jump on stories often without
double-checking on facts.
The third reason defamation cases are on the increase in the
country springs from the need by journalists, especially investigative
journalists, to protect news sources. Often tipsters, informers or
whistleblowers divulge information or give leads on a promise of secrecy. “If a
reporter promises to keep a source secret and that promise is broken, it can be
costly” (Ted White, 2002, Broadcast News
Writing, Reporting, and Producing. Woburn: Focal Press, p 319). This is
why, in 1991, the US Supreme Court ruled that reporters cannot break promises
of confidentiality to news sources (see White, p 319).
Those media houses who are dragged to court for protecting
news sources should definitely be commended because that is the only sure way
of encouraging tipsters and whistleblowers to come forth.
The last reason, and this is the centre of this discussion,
many people resort to litigation on issues of defamation is the growing belief
in many that court is the best place for solving differences. This entails a
disbelief in arbitration and mediation, channels I find feasible in the
Malawi’s media context. On this, I find absolutely informing the words of Frank
Elkouri and Edna Asper Elkouri (1985:7) on advantages of arbitration over
litigation in contexts such as labour disputes: “Arbitration claims among its
advantages the expertise of a specialised tribunal and the saving of time,
expense, and trouble.” Referring to United
Steelworkers v Warrior and Gulf Navigation Co (80 S. Ct 1347, 1352-1353)
[1960], they go on to say on the same page that “the US Supreme Court has
acknowledged that arbitration, rather than court litigation, is the superior
method of resolving disputes under collective agreements.”
Background to the MBC
Defamation story
Let me repeat that my using of the MBC case does not in any
way entail that I was against Mr Richard Msowoya in any way or that I am
defending MBC in some way. I chose it because I found the story an interesting
point for discussion following the comments I had read mostly taunting MBC on
the outcome. My point is that no matter the entity or person at the receiving
end, defamation through litigation should always scare us, reporters and
writers alike.
Well, to the background of the case.
On April 15, 2016, the state-funded Malawi Broadcasting
Corporation (on its television and on its two radios: Radio 1 and Radio 2) aired
a story which Mr Richard Msowoya, the Speaker of the National Assembly and also
Vice-President of the strongest opposition Malawi Congress Party, deemed to
have shown him in bad light. The story was also carried on its website.
According to “Speaker Sues MBC” by Macdonald Thom (available
at www.times.mw, dated January 24, 2017), the story was about Mr Msowoya’s
Personal Assistant, Patrick Kayira, who was said to have been arrested for
breaking into Capitol Hill offices (Capitol Hill is the seat of Government of
Malawi in the Capital City, Lilongwe) where he was said to have stolen a laptop
belonging to one of the Deputy Directors in the Ministry of Finance. The case
was opened as Civil Cause No 508 of 2016 (in May, 2016).
In Malawi, every civil case brought to court is first
supposed to undergo mediation for a number of reasons, among which, to resolve
the matter out of litigation (i.e. outside serious formal court procedures) so
as to save both relations and time, and of course, unnecessary attention and even
embarrassment. And current arrangement in Malawi is that such mediation (unless
you tell me the new Courts Rules, 2015 also known as High Court Civil Procedure
Rules, 2015 have now replaced the Rules of Supreme Court) is chaired by someone
(not necessarily with a legal background, but with knowledge on the subject
around which the case pivots). When it fails at that formal mediation level,
the matter is referred for a formal court setting.
In this Case, it is said the mediator set a date (August 12,
2016) for the parties to meet for mediation but MBC did not appear. When a
party (side) does not appear for mediation, the party present can ask the Judge
to judge on their (available party’s) behalf (unless there was a good reason
why the ‘failing’ party had failed to present itself on the set date). In the
case of MBC failing to appear, it seems there was a genuine reason—MBC said
they were served late, i.e. were given the information on the date very late. The
Malawi Broadcasting Corporation therefore requested (on August 17, 2016) that
another date be set. A month later (September 27, 2016), the mediator told the
Judge that MBC had still not complied. When a party does not comply, the
mediator tells the Judge through a communication known as certificate of
non-compliance (dated September 27, 2016). The Judge would now make his
judgment.
On December 12, 2016 the Judge ordered MBC to pay Mr Msowoya
damages for defamation, embarrassment, distress and for what Mr Msowoya had
spent in taking the matter to court, i.e. costs. At that point, MBC came in
again, asking that the judgment be not made effective, i.e. that the order
should be put aside while MBC was still finding a way to use its defence or
arguments, i.e., a way to put aside the non-compliance label. In other words,
MBC was asking for more mediation, which, to MBC’s luck, restarted on January
17, 2017).
Finally, on June 23, 2017, MBC and Mr Msowoya reached a consensus
through a formal document known as consent judgment showing what parties have
agreed as a final way of resolving their disagreements via mediation under the
supervision of the High Court. When the Court endorses that agreement, it
becomes a document that can be enforced, meaning if a party who is asked to
meet some obligations or payments fails to do so, the Court can use other means
to make it do it.
I deliberately made this part simple so you, my good reader,
can appreciate the duration and the opportunity MBC was given on the matter.
The Implication of the outcome
on MBC
The Malawi Broadcasting Corporation is a state-funded
institution. For giving away such public money in such a fashion is bad news, definitely.
But MBC has the muscle to meet this without losing its financial skin. I am not
sure whether MBC could go the negligence route against the person who had
sourced the story (which I would strongly advise against, and I am speaking
from experience). I know of a case where some Editor was personally sued and
ordered to pay something like K12 million. One wonders how a journalist would
be expected to meet the same.
From this matter, as far as reputation is concerned, MBC lost
out, but you talk financial, I do not see how MBC could get affected by this at
all. Remember, that the Institution had once survived on K1 or something like 7
cents when Parliament decided to punish it for being too pro-ruling Democratic
Progressive Party during the Bingu wa Mutharika reign. Sure, it cannot struggle
to raise K3.5 million Malawi Kwacha or $4,540.
I am saying the blow was on reputation because the judgment
had ordered MBC to retract the story, i.e. to air an apology during five
successive news bulletins on its radios and television in both the main
vernacular Chichewa and English.
If this same thing had happened to some private media, it
would be hell in the administration books as well as on their outlets. This is
why I say no matter the entity at the receiving end, we must celebrate with
caution lest the same measure be applied upon our head and it play hard against
us. One story comes to my mind on this—that involving Late Lloyd Zawanda, may
His Soul Rest in Peace.
On Thursday, October 22, 2015, www.nyasatimes.com carried a story running under the headline “Sheriffs seize Joy Radio
vehicle over K5 libel damages against Chibwana”. The story said High Court Sheriffs
on October 21, 2015 seized a vehicle belonging to Joy Radio Station after its
manager had failed to settle K5 million ($6580) damages from a libel suit.
Initially, the figure had been pegged at K12 million but was reduced to K5
million following negotiations for a compromise.
Unlike the Msowoya-MBC matter here, in the Chibwana-Zawanda
matter, the manager, Llyod Zawanda, had been dragged to court in his personal
capacity. Henry Chibwana was former ruling Peoples Party’s former Secretary
General. Zawanda was said to have made defamatory comments in a radio programme
while reviewing a newspaper. In the programme, Zawanda was said to have said
that Chibwana had fraudulently bought his girlfriend a house from Malawi
Housing Corporation, and that he (Zawanda) had documents with him to prove it,
if queried.
It is said MACRA had played the outside court mediator, and
had ordered Zawanda to apologise, but that Chibwana could buy none of that.
By October 2015, Zawanda had only paid K750,000 of the said
sum of K5 million. One can only imagine how troubling to a journalist this
could be.
Why public figures
should be entreated to seek informal mediation channels
If our media terrain is to thrive, public figures should be
entreated to seek more informal mediation channels whenever they feel their
privacy et al, violated. I am not saying resorting to court straight is a
crime, for the Constitution gives them that right.
The Constitution of the Republic of Malawi in section 15 (2) provides
as follows:
Any person or group of persons, natural or
legal, with sufficient interest in the promotion, protection and enforcement of
rights under this Chapter shall be entitled to the assistance of the courts,
the Ombudsman, the Human Rights Commission and other organs of the Government to ensure the promotion, protection and
enforcement of those rights and the redress of any grievances in respect of
those rights.
By linking Mr Msowoya to a theft story, a number of rights
were violated directly and indirectly. For example, by making him look (like) a
thief in the public eye, his aspirations could be jeopardized. He would not
associate freely with others who would look at him as a thief. He would be
doubted and so lose many opportunities especially being a Vice-President of the
strongest opposition party in the country (and perhaps someone eyeing the big
seat itself some day). For this reason and many, sections 15 (above) and 41
(below) gave him the liberty to approach the court.
Section 41 provides for access to justice and legal remedies.
The section reads as follows:
(1) Every person shall have a right
to recognition as a person before the law.
(2) Every person shall have the right
of access to any court of law or any other tribunal with jurisdiction for final
settlement of legal issues.
(3) Every person shall have the right
to an effective remedy by a court of law or tribunal for acts violating the
rights and freedoms granted to him or her by this Constitution or any other
law.
So, it was right every way for him to seek the intervention
of the court. However, I feel it would have set a nice precedent him going it
the informal mediation route. There is a good reason for my saying this—Mr
Msowoya is a strong advocate of media freedom. The Nation dated May 12, 2017 attests to this through a story under
the headline “Ignore press freedom at own peril”, words uttered by Mr Msowoya, Guest
of Honour at the awards gala dinner commemorating the World Press Freedom Day
on May 6, 2017 (though the actual World Press Freedom Day is May 3) at the Bingu
International Convention Centre in Lilongwe.
“The media has so far done a quite commendable job in
exposing corrupt practices at various levels of public life and there are
issues that would have gone unattended to if it were not for the media,” he observed
to Fatsani Gunya, a Nations Publications reporter.
Is it common knowledge that when reporting on corruption, it
happens that the media sometimes includes wrong people on the list, and suppose
such people always resorted to the way of litigation, what would become of
investigative journalism in Malawi?
“I must declare that,” added Mr Msowoya, “as Speaker of
Parliament of Malawi, I am a very strong defender of press freedom; not only
because it is enshrined in the Constitution which I swore to defend and
protect, but more importantly, because I believe in it.”
The Speaker believes in it, freedom of the press, and I felt
the best approach should have been to register his disappointment the same way
Archbishop Msusa had done recently at the Public Affairs Committee
All-Inclusive Conference. It was marvelous the way the Archbishop had approached
the matter, and equally impressive the way the Minister of Justice and
Constitutional Affairs, Samuel Tembenu, had lowered himself to apologise
unreservedly on behalf of his ‘son’, MBC.
It could be good news what had befallen MBC, but who knows
who next in the line is.
What the reporting
terrain would be like if everyone was taking it to court
There are basically three ways through which a story can be
deemed defamatory: slander (verbal insults); libel (printed insults) and
juxtaposition, i.e. putting a good item so close to a bad (insulting) one that
the people will think that the meaning in that bad item applies to that
innocent item as well. I have tried to portray this in simple language, because
I do not believe in legal language that crowds out meaning or understanding.
When one considers this, how many cases would we have on defamation on daily
basis? However, it pleases that many absorb the beating and our land is never
short of award-winning articles. Let us encourage this spirit though this should
not mean our reporters should throw caution to the wind and jump on people or
report on facts unverified.
References
The Constitution of the Republic of Malawi.
United Steelworkers v
Warrior and Gulf Navigation Co (80 S. Ct 1347, 1352-1353) [1960],
“CCAP Livingstonia Synod haunted by defamation case: Matter
back in court” August 31, 2017. Available at www.nyasatimes.com
Elkouri, Frank and Edna Elkouri, Edna Asper. (1985). How Arbitration Works (4th Ed).
Washington, DC: The Bureau of National Affairs Inc.
“Ignore press freedom at own peril” The Nation dated May 12, 2017.
“Sheriffs seize Joy Radio vehicle over K5 libel damages
against Chibwana”. Thursday, October 22, 2015, www.nyasatimes.com
White, Ted (2002). Broadcast
News Writing, Reporting, and Producing. Woburn: Focal Press.
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